U.S. v. DeBrouse

• Decision Date: 22 July 1981
• Docket Number: No. 79-5166,79-5166
• Citation: 652 F.2d 383
• Parties: 107 L.R.R.M. (BNA) 3021, 91 Lab.Cas. P 12,847 UNITED STATES of America, Appellee, v. Francis C. DeBROUSE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 383

652 F.2d 383

107 L.R.R.M. (BNA) 3021, 91 Lab.Cas. P 12,847

UNITED STATES of America, Appellee, v. Francis C. DeBROUSE, Appellant.

No. 79-5166.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 5, 1980.

Decided June 25, 1981.

Rehearing Denied July 22, 1981.

Albert J. Ahern, Jr., Baileys, Crossroads, Va. (Peter T. Tonnessen, Arlington, Va., on brief), for appellant.

Michael J. Travieso, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

BUTZNER, Circuit Judge:

Francis C. DeBrouse appeals a judgment convicting him, on the verdict of a jury, of violating 29 U.S.C. § 186(b) as charged in five counts of a multicount indictment. ¹ In one count he was also charged with aiding and abetting. Briefly summarized, his assignments of error assert insufficiency of the evidence, misconstruction of the Act, objectionable jury instructions, prejudicial variance, inadmissible evidence, prejudice arising out of submission to the jury of the counts on which he was acquitted, and the imposition of an illegal sentence and excessive costs. We affirm the judgment of conviction, but we remand for reconsideration of the assessment of costs.

I

The Taft-Hartley Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 186(a), prohibits employers from paying or delivering anything of value to labor union officials who represent or seek to represent their employees. ² A complementary provision, § 186(b), ³ prohibits any person from requesting or accepting anything of value proscribed by § 186(a). Section 186(c) exempts transactions conducted in the regular course of business at the prevailing market price. Infractions of § 186(b) are misdemeanors. See 29 U.S.C. § 186(d).

DeBrouse was president of Local 639 of the Teamsters, and he actually or potentially represented employees of the employers with whom he dealt. With respect to two of the charges, the government offered proof from which the jury could find beyond a reasonable doubt that DeBrouse requested and personally received goods and services from two employers in transactions not conducted in the regular course of business. Also, the jury could find that DeBrouse did not intend to pay the prevailing market price for the goods and services he received. Indeed, he did not pay anything until the employers sued him after his influence over the affairs of the union was destroyed by his failure to win reelection.

On two other occasions, the evidence disclosed that DeBrouse prevailed on employers to award exterminating contracts to a company in which he held a secret interest. DeBrouse did not broach this subject with the management personnel ordinarily responsible for awarding such contracts. Instead, he approached the people with whom he conducted labor negotiations. Without disclosing his own interest in the firm, DeBrouse told them his son was employed by the exterminating company. There was ample proof the transactions were not conducted in the ordinary course of business. The testimony discloses that the significance of DeBrouse's dual role as a solicitor of business and as a labor leader was apparent to the employers. The exterminating company was the direct beneficiary of the contracts, but DeBrouse indirectly benefited through his concealed interest in the firm. His request for a thing of value that would indirectly benefit him is a sufficient predicate for conviction. See United States v. Pecora, 484 F.2d 1289, 1294 (3d Cir. 1973).

With respect to all four counts, some of the testimony was in conflict, and the evidence could support different inferences. Nevertheless, there was substantial evidence, taken in the light most favorable to the United States, tending to show that DeBrouse was guilty beyond a reasonable doubt. The district court therefore did not err in denying DeBrouse's motion for a judgment of acquittal due to insufficiency of the evidence. See Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1951).

II

In the remaining count on appeal, the government acknowledges that payments an employer made to a friend of DeBrouse's were not transmitted to DeBrouse either directly or indirectly. The indictment alleges that DeBrouse requested a thing of value from an employer and that he caused Vincent Caprio, as his nominee, to receive and accept the thing of value, namely $200 a week between November, 1973, and December, 1974. ⁴ From the government's proof the jury could find that DeBrouse requested the employer to pay Caprio $200 a week and Caprio received approximately $12,000 for which he performed no services.

When the payments stopped sometime in 1974, Caprio complained to DeBrouse. The employer then experienced labor troubles, and it resumed payment for the rest of the year. The government does not claim that DeBrouse received any of the money that the employer paid Caprio.

DeBrouse argues that since he did not receive any of the money, he did not violate the Act. The district court rejected this argument and construed the Act to encompass the payments made to Caprio. Over DeBrouse's objection, it instructed the jury:

Also, it is sufficient if you find beyond a reasonable doubt that the defendant requested or demanded that an employer give a thing of value to a third party, with the understanding that the third party was to keep the thing of value and that the defendant would have no access to it.

Although there appears to be no precedent precisely on point, we conclude that the district court did not err in its construction of the Act or in its charge to the jury.

Section 186(b) ⁵ prohibits any person from requesting or demanding any thing of value prohibited by § 186(a). Thus, the government did not have to prove receipt by DeBrouse. It was sufficient to show that by demanding the payments from the employer, he caused Caprio to receive a thing of value prohibited by § 186(a).

The critical question therefore is whether § 186(a) prohibited the payments to Caprio. We believe that it did. Section 186(a) ⁶ prohibits an employer from delivering or agreeing to deliver anything of value to a representative of his employees. The government's proof showed that the employer delivered and agreed to deliver to DeBrouse the precise thing of value DeBrouse demanded, that is, payment of $200 a week to Caprio. Therefore, the fact that the thing of value, which the employer delivered to DeBrouse, took the form of payments to Caprio does not place the transaction beyond the scope of the Act. Having shown the employer's acquiescence in DeBrouse's demand, the government was not also required to prove that DeBrouse received the money.

Moreover, in § 186(c) Congress specifically exempted a number of transactions from the Act. Significantly, it did not exempt payments made by an employer to a third person at the request of a union official. We find nothing in the legislative history that indicates Congress intended courts to engraft such an exception on the Act. Indeed, the legislative history of the 1959 amendments is just to the contrary. It expresses congressional intention "to remove any doubt that all forms of bribery ... would be prohibited under pain of criminal penalties." ⁷

In United States v. Ryan, 350 U.S. 299, 305-06, 76 S.Ct. 400, 405, 100 L.Ed. 335 (1956), the Court, referring to the legislative history of the Taft-Hartley Act, observed that the scope of the House Bill was enlarged in the Senate "to include, in the words of Senator Taft, a 'case where the union representative is shaking down the employer.' " That, of course, is precisely what the evidence disclosed DeBrouse was doing. In Ryan the Court admonished that the Act was not to be read so narrowly that it defeated congressional purpose. 350 U.S. at 304, 76 S.Ct. at 404. The district court's construction of the Act was consistent with this precept.

Finally, we note that the district court's construction of the Act also is consistent with the construction of the Hobbs Act ⁸ found in United States v. Provenzano, 334 F.2d 678, 686 (3d Cir. 1964). There the court, dealing with a union official who extorted payments from an employer, said:

(W)e hold that it is not necessary to prove that the extortioner himself, directly or indirectly, received the fruits of his extortion or any benefit therefrom. The Hobbs Act does not require such proof. It is enough that payments were made at the extortioner's direction to a person named by him.

In like vein, we hold that the Taft-Hartley Act, as amended, does not require proof that a union official, directly or indirectly, received any part of the money that an employer paid to a third party at the official's request. It is enough that the union official caused the third party to receive the money by demanding payment from an employer who is subject to the Act.

III

DeBrouse's remaining assignments of error require only brief discussion.

We cannot accept DeBrouse's argument that on all counts he was entitled as a matter of law to the exemption provided in § 186(c)(3). ⁹ Whether his transactions with employers were "at the prevailing market price in the regular course of business" presented factual questions for the jury. The court's instructions placed the burden of proof with respect to this issue on the prosecutor, and the evidence, viewed in the light most favorable to the government, is sufficient to sustain the verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Contrary to DeBrouse's argument, the statutory term, "in the regular course of business" in itself provides an adequate standard for determining whether the exemption applies. It therefore was unnecessary for the court to define this phrase, especially in the absence of a proffered definition by DeBrouse.

IV

We find no prejudicial variance between the...